Amicus Brief
of the
American Civil Liberties Union
Chapter Arizona

     I. Confessions obtained through unrecorded interrogations are inherently untrustworthy and thereby violate due process.
     As Justice Harlan remarked in Mayberry v. Pennsylvania "[T]he appearance of even-handed justice ... is at the core of due process. 400 U.S. 455, 469 (1971) (Harlan, J., concurring). Also at this core is the right to a fair trial." Chambers v. Mississippi, 410 U.S. 284 (1973).

Fundamental to a fair trial is the notion that untrustworthy evidence should not be presented to a trier of fact. Id. Courts have noted that, absent procedural safeguards, custodial interrogation leads to violations of the defendant's right against self-incrimination and the right to counsel. See. e.g., Miranda v. Arizona 384 U.S. 436 (1966); Michigan v. Jackson, 475 U.S. 625, 629 (1986) (holding that "the Fifth Amendment protection against compelled self-incrimination provides the right to counsel at custodial interrogations"). Unchecked interrogations result in untrustworthy confessions. Jackson v. Denno, 378 U.S. 368, 386 (1964) (holding that due process forbids the use of involuntary confessions because such confessions are unreliable and because they are derived from a suspect against that suspect's will); U.S. v. Tingle, 658 F.2d 1332, 1334 (9th Cir. 1981) ("confessions obtained in a coercive manner are likely to be unreliable"). The introduction at trial of such untrustworthy evidence, obtained by means which may violate the defendant's rights against self-incrimination and the right to counsel, violates the defendant's due process rights. Without recording as a safeguard, such violations are likely to occur.

     A. Confessions obtained through unrecorded interrogations may violate the defendant's right against self- incrimination and the right to counsel.
Guaranteed under the Fifth Amendment, the right against self-incrimination is an "essential mainstay" of our criminal justice system. Malloy v. Hogan, 378 U.S. 1,7 (1964). In Miranda the Supreme Court recognized that custodial interrogation is inherently coercive and threatens the right against self-incrimination. Miranda, 384 U.S. at 467; U.S. v. Haddon, 927 F .2d 942, 946 (7th Cir. 1991) ("a confession secured from a defendant during custodial interrogation is attended with the presumption of coercion"). "[W]ithout proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures." Miranda, 384 U.S. at 467. Because of the secrecy under which many police interrogations take place, the Court in Miranda noted, "[w]hatever the testimony of the authorities as to waiver of rights by an accused, the fact of ... incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights." Id., at 476.

     Notwithstanding the unambiguous and understandable mistrust the Miranda Court had for secret custodial interrogation, the safeguards the Court imposed have not succeeded in lifting the - veil of secrecy that surrounds the interrogation room or in assuaging the inherently coercive nature of that environment. Today such interrogation still remains largely hidden from both the eyes of the public and of the court. Today it is routine police practice to isolate a suspect from the outside world during questioning and to rely upon the officer's testimony as to what occurred.(1)

     While the interrogations themselves may be hidden, the methods police use in order to elicit confessions from suspects are no secret. Prior to Miranda, such confessions were often obtained through physical force. See. e.g., Brown v. Mississippi, 297 U.S. 278 (1936) (police whipped and tortured three black suspects until they confessed). By the time Miranda was decided the police techniques had experienced a shift from the physical to the psychological;(2) Miranda, at 448.(3) Either physical or psychological pressure, however, may lead to the production of an involuntary confession. Blackburn v. Alabama, 361 U.S. 199,206 (1960). Ibnau & Reid's Criminal Interrogation and Confessions, widely used by police before Miranda and just as widely used today, teaches interrogators to exert dominance and control over the suspect by using a range of tactics, from sympathy to intimidation, promises of leniency, and outright lies about evidence, in order to get the suspect to confess.(4) The Supreme Court has noted that these techniques lead to involuntary confessions. See, Hutto v. Ross, 429 U.S. 28, 30 (1976) (a confession obtained by any "direct or implied promises, however slight," is involuntary.). Other manuals encourage officers to question the suspect "outside of Miranda" by, among other things, reading the Miranda warnings and then minimizing their importance to the suspect.(5) The questionable tactics routinely used by police in their persuasion, coupled with attempts to circumvent the protections Miranda sought to safeguard and performed in the secrecy of the interrogation room, severely threaten a suspect's Fifth Amendment right against self incrimination.

     As noted above, the Fifth Amendment right against self-incrimination also provides a right to have counsel present at custodial interrogations. This guarantee means little when the secrecy surrounding an interrogation leaves the police to be the sole and uncorroborated record for whether such a right was invoked. In Edwards v. Arizona, 451 U.S. 477, 484-485 (1981), the Supreme Court held that once a suspect invokes his right to an attorney, all questioning must cease unless initiated again by the defendant. Despite this holding, cases and studies show police continue questioning suspects after those suspects have invoked their rights.(6) One study showed this occurred nearly one out of every five times after a suspect invoked his or her rights.(7) The secrecy of an interrogation can only encourage such blatant disregard of constitutional rights, as evidenced by the conduct of police in Cooper v. Dupnick, where interrogators repeatedly ignored the suspect's requests for counsel and questioned him in secret for hours. While Cooper was later cleared of all charges, the Court displayed disgust at the conduct of the police: "With his requests to see a lawyer disregarded, Cooper was a prisoner in a totalitarian nightmare, where the police no longer obeyed the Constitution, but instead followed their own judgment, treating suspects according to their whims." Id., supra, note 5, at 1234.

     Detective Saldate's secret interrogation of Debra Milke is precisely the kind of interrogation that the court in Cooper so abhorred. Yet whether Saldate ever gave even a cursory reference to Ms. Milke's constitutional rights will forever remain a mystery. Saldate denied Ms. Milke her request for an attorney and continued to question her even though she made it clear that she did not understand her constitutional rights. (R. T. 10/3/90 at 17). Without an objective record of events, the court may only piece together the events of the interrogation. What may be pieced together makes it highly likely that Ms. Milke's right against self-incrimination and her right to counsel were thoroughly and completely ignored.

     B. Confessions obtained through unrecorded interrogation result in the production of untrustworthy evidence in the form of false confessions and uncorroborated police officer testimony.

     The same secretive interrogation practices that violate a suspect's rights often end in producing false and generally untrustworthy evidence. This principle has long been accepted in American and British jurisprudence going back to the common-law voluntariness test, which excluded confessions extracted with certain practices as unreliable evidence.(8) While the Warren Court's line of cases leading up to Miranda initially focused on the suspect's free will in giving a confession under interrogation, the notion that such evidence is also untrustworthy continues to be a factor in voluntariness determinations. See, e.g., Tingle, at 1334. The process by which unrecorded confessions are obtained leads on the one hand to false confessions, and on the other to the creation of a "swearing match" between the defendant, who maintains his or her innocence, and the interrogators, who claim that the defendant has confessed. Both results are inherently untrustworthy; the first by definition, the second by nature of its being both a product of coercion and uncorroborated testimony.

     Indeed, the advent of DNA testing and other evidence in a variety of different cases has helped to illustrate the magnitude of the false confession problem and the link between unrecorded custodial interrogation practices and such untrustworthy evidence. The "Central Park Jogger" case is a recent example of DNA evidence exonerating defendants who confessed falsely to a crime they never committed. Saul Kassin, False Confessions and the Jogger case, N.Y. Times, Nov. 1,2002. Several hours of the defendants' interrogations were unrecorded. Id. Psychological studies detail how the common interrogation techniques listed above, such as threats of punishment, promises of leniency, and fabrication or misrepresentation of evidence against the suspect, are responsible for a significant number of false confessions, even in situations where police claim they have given Miranda warnings.(9) Out of 45 wrongful convictions for murder discovered in Illinois since 1946, fifteen (15), or 33% involved either a false confession by the defendant or the fabrication of such a confession by authorities. Rob Warden, False Confessions, Center on Wrongful Convictions, Northwestern U. (2002).

     The compliant and mentally retarded are groups of individuals especially susceptible to false confessions (10). Debra Milke was functioning in a significantly reduced capacity at the time of her interrogation by Detective Saldate. The evening before the interrogation, Ms. Milke had repeatedly been given alcohol and prescription medication by her family and friends to calm her anxiety over her missing son, and she had had virtually no sleep throughout the night. (R. T. 9/24/90 at 93-95, 102, 109-110, 117, 142). She managed to get only a few hours of sleep on the- afternoon of the next day, after imbibing more alcohol. (R. T. 9/13/90 at 110-111, 113). Later that afternoon she was taken to the police station in Florence. (R. T. 10/2/90 at 11). In addition to being sleep deprived and somewhat impaired, Ms. Milke was also suffering from extreme anxiety and depression due to her son's disappearance. (R. T. 9/13/90 at 110). When Saldate finally arrived after Ms. Milke had been waiting two or three hours at the station, he immediately announced that authorities had found her son dead and that she was under arrest for his murder. (R. T. 10/2/90 at 11; R. T. 9/12/90 at 64). Any mother confronted with this news in these circumstances would clearly be completely overwhelmed and incoherent. Ms. Milke went into shock and became hysterical until Saldate succeeded in commanding her to be silent. (R. T. 10/3/90 at 13, 18-20). Due to Ms. Milke's state at the time of her interrogation, any statements made to Saldate could not have been the product of a rational mind.

     The "swearing match" that often takes place between defendants and police over whether a confession was made is also highly untrustworthy. Presented with the conflicting testimony of a police officer and the defendant in a criminal case, judges overwhelmingly believe the police officer.(11) The officer's testimony, therefore, is held to satisfy the due process voluntariness test and may be presented to a jury. Standing alone, this practice continues to be questionable.(12)
Where, as in this case, no corroboration exists except perhaps for the self-serving and coerced statements of one co-defendant (also made during interrogations by Saldate), the use of these unrecorded confessions at trial flies in the face of due process (13).

     Recent evidence of false confessions obtained through police abuse also calls frequent rubber-stamping of police testimony into question. "Interrogation" techniques used at Chicago's Area 2 police station, such as suffocation and prolonged hanging by the wrists, were calculated to leave little or no marks (and hence little or no support for a defendant's false confession claim).(14) Even assuming such physical abuse did not exist, the generally unreliable and presumptively involuntary evidence produced by unrecorded interrogations means that the hearsay testimony given by officers as to what transpired in this environment must be doubly unreliable. This, coupled with the fact that police choose not to record an event when such recording is easily available and will undoubtedly bolster a valid confession, makes the uncorroborated testimony of police officers with regard to confessions entirely untrustworthy.

     Detective Saldate's techniques, while perhaps not physically abusive, were psychologically coercive to the point that a false confession would be likely. He ignored Ms. Milke's requests for a lawyer and questioned her in secret, controlling the interrogation by exerting his dominance over her and invading her personal space. (R.T. 10/3/90, at 17-18).
During the interrogation, Saldate arranged his and Ms. Milke's chairs so that their knees were almost touching. (Id). It is impossible to know for sure what transpired in the interrogation room. However, after reviewing Saldate's interrogation, Professor Richard Leo found that, in the absence of a recorded interrogation to verify his often outrageous claims, "Detective Saldate's account of the interrogation and alleged confession is too untrustworthy to support a conviction (especially a capital conviction) and ... he may very well have fabricated or coerced a false or non-existent confession from Debra Milke." (petitioner's exhibit 28, at 11).

     Questionable motives aside, a police officer must testify as to what transpired in one interrogation months, and sometimes years afterwards and after hundreds of similar interrogations have since been performed. This fact was persuasive in the Alaska Supreme Court's decision to exclude statements made by defendants when there had been a failure to electronically record them:

Human memory is often faulty ... "It is not because a police officer is more dishonest than the rest of us that we ... demand an objective recordation of the critical events. Rather it is because we are entitled to assume that he is no less human-no less inclined to reconstruct and interpret past events in a light most favorable to himself-that we should not permit him to be a 'judge of his own cause.'" Stephan v. State, 711 P .2d 1156, 1161 (Alaska 1985) (quoting Kamisar, Forward: Brewer v. Williams-A Hard Look at a Discomfitting Record, 66 Geo. L. J. 209, 242-243 (1977-78)).

     Ultimately, the secrecy surrounding the defendant's interrogation and the utter lack of any reliable record of events other than the officer's testimony at trial results in the kind of "gap in knowledge" that the Miranda rule was intended, but has ultimately failed, to fill. Miranda, 384 U.S. at 448.

     II. Confessions obtained through interrogations violate the defendant's right to a fair trial and recording interrogations is necessary to ensure due process.

     Unrecorded custodial interrogation frequently violates the defendant's right against self- incrimination and the right to counsel, and the police practices that induce these violations are likely to lead to wrongful convictions and the production and presentation of untrustworthy evidence to a trier of fact. A fair trial cannot be guaranteed to a defendant under such circumstances, and this Court can and should mandate recording in order to preserve the defendant's due process rights to a fair trial. Recording will ensure that the defendant's confession is lawfully and voluntarily given and that the presentation of this confession to a trier of fact will be reliable and trustworthy.

     A. This Court has the power to mandate recordings in order to safeguard the defendant's due process rights to a fair trial.

     The imposition of judicial requirements to safeguard the defendant's rights to a fair trial is nothing new. The due process clause has long been held to require the government to actively protect the innocent from wrongful convictions.(15) Recently, in U.S. v. Dickerson, 530 U.S. 428 (2000), the Supreme Court held that judicially imposed prophylactic rules such as Miranda are constitutional decisions and that Congress cannot overrule them. 530 U.S. at 428. Even before Miranda, the Court has adopted similar prophylactic measures to safeguard due process. In Jackson v. Denno, the Court held that a New York state court procedure that submitted the question of voluntariness of a defendant's confession to the same jury that would then decide the defendant's guilt was unconstitutional on due process grounds. Instead, because the Court felt that juries were ill equipped to decide on the issue of voluntariness, it required that either the judge or a different jury should make that determination. Id., at 395. In doing so, the Court noted, "expanded concepts of fairness in obtaining confessions have been accompanied by a correspondingly greater complexity in determining whether an accused's will has been overborne." Id., at 390. The state court procedure then in place was not an adequate tool to assure such fairness or the reliability of the evidence in question; indeed, it "pose[d] substantial threats to a defendant's constitutional right to have an involuntary confession entirely disregarded and to have the coercion issue fairly and reliably determined." Id., at 389. A more reliable procedure for determining the voluntariness of a confession, via a judge or different jury, was thus constitutionally required. Id., at 392. Fundamentally, Jackson stands for the notion that in order to protect due process, courts should impose the use of better fact-finding procedures where the old procedure does not adequately assure that reliable evidence will be presented at trial. As argued in Section A, the multitude of problems surrounding unrecorded custodial interrogation leads to the presentation of untrustworthy and hence unreliable evidence at trial. Consistent with the principles of Jackson and Miranda, mandating the recording of interrogations is a constitutional necessity in order to protect the due process rights of the defendant.

     Both the Alaska and Minnesota Supreme Courts understood this principle in their decisions to mandate recording. Stephan v. State, 711 P.2d 1156 (Alaska 1985); State v. Scales, 518 N. W.2d 587 (1994). While both courts understandably based their holdings upon state law, they premised both of their decisions upon the right to a fair trial. The court in Stephan found that mandatory recording "is now a reasonable safeguard, essential to the adequate protection of the accused's right to counsel, his right against self incrimination, and, ultimately, his right to a fair trial." 711 P .2d at 1159-1160. Drawing upon this reasoning, the Scales court mandated recording in accordance with the court's "supervisory power to insure the fair administration of justice." While the court did not equate this power with the due process clause of the Minnesota Constitution, the analysis above clearly shows that, similar to the judicially imposed safeguards in Jackson and Miranda, a court may exercise such "supervisory power" in order to safeguard the - right to a fair trial under the federal due process clause.

     B. Recording is a necessary measure to ensure the trustworthiness of evidence at trial.

     "It is precisely the function of a judicial proceeding to determine where the truth lies." Briscoe v. LaHue, 460 U.S. 325,335 (1983). As described above, confessions obtained through coercion and intimidation are inherently untrustworthy and obfuscate rather than illuminate the truth. It is incumbent on this Court, therefore, to encourage those practices that promote illumination, particularly in capital cases, where the defendant's life is in jeopardy. Requiring the recording of interrogations as a prerequisite to the admissibility of a confession would significantly aid this Court in presenting accurate facts to a jury for deliberation. The 8th Circuit has acknowledged as much when it addressed the issue of electronic recordings as an aid to determining the circumstances surrounding an interrogation: "For jurors to see as well as hear the events surrounding an alleged confession or incriminating statement is a forward step in the search for truth." Hendricks v. Swenson, 456 F.2d 503,506 (8th Cir. 1972). Mandating the recording of interrogations would be such a step.

     Recording allows the court access to a custodial interrogation, thereby lifting the veil of secrecy surrounding the interrogation room. Had the events of Ms. Milke's interrogation and alleged confession been memorialized on tape, there would be no need at attempts to fill the "gap in knowledge" which so disturbed the Miranda Court; with mandatory recording such a gap would simply not exist. Recording would also positively affect the conduct of police officers in the interrogation room. While a defendant may be coerced into signing a sworn statement when the interrogation took place in secret, such coercion would be much less likely to occur if the interrogation, including all constitutionally mandated warnings, was administered on tape.(16) A police officer is more likely to act appropriately during an interrogation if the officer knows that higher authorities may review a recording of his or her work.(17) Similarly, convictions due to false confessions would be prevented in many, if not all, cases where a judge has the ability to review aspects of a contested custodial interrogation.(18)

     Like Alaska and Minnesota, other jurisdictions and legal organizations have begun to recognize the importance of a mandatory recording requirement. Texas requires such recording by statute. Vernon's Ann. Texas Code of Crim. Pro. Art. 38.22(3) (requiring that no oral statement of the accused be used in court unless first videotaped). Illinois had recently enacted similar legislation. Monica Davey, Illinois will Require Taping of Homicide Investigations, N. Y. Times, July 17, 2003, at A 12. Numerous legal commissions and organizations support such a requirement.(19) Municipalities across the country have adopted a form of mandatory recording.(20) All of the other major common law countries (Britain, Canada, and Australia) have done the same. Daniel Donovan and John Rhodes, Comes a Time: The Case for Recording Interrogations, 61 Mont. L. Rev. 223, 231 (2000).

     Mandating recording also meets the standards of constitutional materiality and may be distinguished from the preservation of breath samples at issue in California v. Trombetta, 467 U.S. 479 (1984). In Trombetta, the Supreme Court held that, while due process does require the state to provide the defendant with access to evidence, it does not require the preservation of breath samples for independent review by the defendant. Breath samples, the Court said, do not meet the standard for constitutional materiality, whereby such evidence "must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable available means." Id. at 489. Because the highly accurate Intoxilyzer machines that analyzed breath samples were designed to be as neutral and accurate as possible, the Court found that independent review would be unlikely to exculpate the defendant. These procedures are far removed from the world of the interrogation room, where the results are determined not by machines, but by humans capable of serious error. Such unrecorded interrogations are inherently coercive, see, Miranda, 384 U.S. at 458, and thus far less trustworthy than a machine analysis. Any recording made would therefore tend to expose the existence of untrustworthiness and exculpate the defendant. As noted above, unrecorded interrogations and confessions have resulted in numerous constitutional violations and wrongful convictions. The sample of an Intoxilyzer analysis, even when related in court by a lab technician, is therefore far more reliable than the testimony of a police officer as to the events that take place during an unrecorded interrogation.(21) Additionally, there is a key difference in the nature of the evidence itself: the breath samples in Trombetta were concrete evidence that was analyzed at one time and then later destroyed, while unrecorded interrogations and confessions are just that - unrecorded.

     Confessions produced through custodial interrogation are crucial evidence in any prosecution of a defendant. Investigators obtain such confessions, however, in a manner that is presumptively coercive. Miranda, 384 U.S. at 467; U.S. v. Haddon, 927 F.2d at 946.
Preservation of a confession is thus different from the preservation of evidence in Arizona v. Youngblood, 488 U.S. 51 (1988). Youngblood held that the government's failure to preserve "potentially useful" evidence of the defendant's sperm for independent analysis was not a denial of due process unless the government acted in bad faith. 488 U.S., at 57. The Court noted that the prosecution had not attempted to use the lost evidence in its case in chief, and the defendant's conviction was independent of the lost evidence. Id., at 56. In any case where a confession is presented at trial, however, the circumstances surrounding the making of the confession are not merely useful, but essential to a determination as to whether such a confession was made voluntarily. This is especially true of the present case, where Ms. Milke's alleged confession provided the linchpin of the prosecution's argument.

     However, even if a record were only to fall within the ambit of "potentially useful" evidence,(22) the failure to make such a record would certainly constitute bad faith under Youngblood. If an unrecorded interrogation takes place at a police station where recording equipment is readily available, a likely reason for the failure to record is that the interrogating officer did not want an objective record of events. In contrast, if a recording would support an officer's otherwise uncorroborated testimony, the state would want to present it. If an interrogator fails to record a custodial interrogation, this fact gives further support to the notion that this failure is in bad faith.

     In the instant case, Detective Saldate's failure to record is a shining example of bad faith. While specifically instructed to record his interrogation of Ms. Milke by a superior officer, he chose not to and, as a result, the highly contentious circumstances of Ms. Milke's interrogation are forever lost and her conviction open to question (R.T. 9/10/90 at 29,41-43). There is ample evidence to show that Saldate purposefully avoided recording these events so that he alone would be the record of events at trial. He never asked Ms. Milke to sign a written confession. He ordered other officers out of the interrogation room so that there would be no witnesses. (R. T. 9/10/90 at 47). He did not bring recording equipment with him or ask to use such equipment from the sheriffs office when he arrived. (R.T. 9/10/90 at 43). Most damning of all, Saldate destroyed all of his notes of the interrogation and at trial relied solely upon his police report for his testimony.(23) (R. T. 9/13/90 at 34-35). The conscious and deliberate failure of Detective Saldate to preserve any recording of the event calls into question his claim, after the fact, that he didn't record the interrogation because Ms. Milke did not want it recorded.(24) What is more, this failure is clearly a violation of Ms. Milke's due process rights.

     The fact that the judiciary is specifically empowered and charged with the duty to protect the due process rights of a defendant to a fair trial suggests that the 9th Circuit decision in U.S. v. Coades 549 F.2d 1303 (1977) be reconsidered. In Coades, the Court of Appeals held that an officer's testimony as to the defendant's unrecorded confession was not subject to suppression, and instead deferred to the legislature on the issue. 549 F.2d at 1305. Criminal justice has come a long way since 1977, and the technological and judicial landscape has changed significantly since Coades was decided. Electronic recording equipment is now commonplace in most police stations and, indeed, Detective Saldate had ready access to recording equipment and was instructed to use it in his interrogation of Debra Milke. Additionally, since the decision in Coades, at least two state courts have mandated recording in order to safeguard the defendant's right to a fair trial. The falsities of the confessions of dozens of people have been confirmed with DNA evidence. The Supreme Court's decision in Dickerson reemphasizes the importance of prophylactic rules to protect the Constitution, and shows that it is within the power of this Court to mandate the recording of interrogations. While a legislature may also exercise such power under the Constitution, as the Texas legislature has done, the interests of justice in this case warrant this Court's use of its well-defined powers in order to protect Debra Milke's right to a fair trial. If this Court abdicates its power in order to defer to the legislature, Ms. Milke will be denied such a right. Furthermore, as this is a capital case, Ms. Milke's denial of a right to a fair trial will be final; any legislative remedy would be entirely lost to her.

     III. Recording is a general improvement in fact-finding and is the most reliable method devised thus far for determining the trustworthiness of a suspect's confession.

     As the Court in Stephan recognized, "The concept of due process is not static; among other things, it must change to keep pace with new technological developments." 711 P .2d at 1161. This is especially true of a case where the death penalty may be imposed; in such a case the stakes are so high that the procedures used to ensure the trustworthiness of evidence become all the more important. Ake v. Oklahoma, 470 U.S. 68, 87 (1985) (Burger, C.J., concurring in judgment) ("In capital cases the finality of the sentence imposed warrants protections that mayor may not be required in other cases"). And yet, while cutting-edge technological advances are currently employed to fight crime in all manner of police investigation, such advances have been conspicuously absent in the realm of custodial interrogation - a form of investigation that arguably produces the most important evidence for the state in a criminal trial. The use of blood alcohol testing is routine in arrests for driving under the influence, just as radar guns are commonplace tools for patrol officers in catching speeding motorists.(25) Indeed, without the evidence that results from the use of these accurate evidentiary tools, most judges and juries would be loath to convict a defendant on police testimony alone. Judges and juries seem predisposed, however, to believe the testimony of a police officer when it comes to an unrecorded confession, despite the unreliability of such evidence.(26) If the state places cameras in police cruisers and at traffic intersections to pursue misdemeanors, it is inconceivable that we would not require such technology for cases involving the most heinous of crimes in order to protect the innocent and convict the guilty.

     Support in the law enforcement community for a mandatory recording requirement mirrors the widespread support that police and prosecutors showed for Miranda warnings shortly before the Supreme Court's decision in Dickerson.(27) This support is especially strong from officers and prosecutors in states where recording of custodial interrogations is already mandated. Veronica Rose, Videotaping Police Interrogations in Select States, Connecticut General Assembly, Office of Legislative Research Report 72 (1999). Interviews with these individuals in Alaska and Minnesota reveal a universal desire to keep some form of mandatory recording and a consensus that such a requirement aids law enforcement. Id., at 57-58. Similar interviews with police chiefs in Texas show that, while some officers were initially skeptical about the electronic recording requirement in that state, most now view the requirement positively. Id., at 75.(28)

     It is easy to see why law enforcement personnel in jurisdictions that require recording value the requirement so highly. As several scholars have noted, the benefits police receive from mandatory recording are numerous.(29) An objective record of police work inside the interrogation room lends credibility and support to the statements police have obtained. Leo, 86 J. Crim. L. & Criminology at 683. Such evidence may be reviewed by police multiple times, giving investigators detail that notes or. the memory of an interrogator seriously lack. Id. Supervisors may use tapes of interrogations as effective training tools. Id. Prosecutors, too, benefit from seeing the demeanor and general disposition of the defendant during interrogation; they may use such information in charging a defendant or in framing their case for trial. Id., at 684. Perhaps most importantly, a recording requirement serves as a bright line rule that is easy to monitor. Of the remaining concerns those in law enforcement cite regarding a recording requirement, the most prominent are the cost of implementation and the perceived inhibition suspects will have to recorded interrogation. Id., at 684-685; Illinois Association of Chiefs of Police, Response to Illinois Governors Commission on Capital Punishment 4 (2002). These concerns, too, are misplaced. When constitutional rights are at stake any potential "cost" to law enforcement is, of course, beside the point; this is especially true considering the fact that the Fifth Amendment is an unambiguous restraint on law enforcement. However, given the available evidence, there is no reason to think that a mandatory recording requirement will be unmanageable. As mentioned, many departments already possess the necessary materials for such a requirement. Rather than dragging on the already tight budgets of many police forces, mandatory recording is in fact cost-effective: police save money on transcription and the prosecution saves time and effort defending against allegations of improper police conduct. Leo, 86 J. Crim. L. & Criminology at 685.

     There is similarly no reason to believe many suspects will refuse to talk on camera. After Miranda the majority of commentators believed the warnings would encourage suspects to invoke their fights to remain silent. ill fact, the opposite is true: the vast majority of suspects waive their rights after police read them the Miranda warnings.(30) We would expect similar results from suspects interrogated on camera. As a St. Paul, Minnesota police sergeant with 25 years of field experience noted, "My experience is that the tape doesn't have a negative effect. I turn it on in the beginning, set it to one side, and the interview takes place. Individuals forget about it. I notice no change in the suspect's demeanor whether they are being taped or not." Rose, supra, at 77.